Matthew E. Price. Rethinking Asylum: History, Purpose, and Limits. Cambridge: Cambridge University Press, 2009. x + 279 pp. $80.00 (cloth), ISBN 978-0-521-88116-6; $32.99 (paper), ISBN 978-0-521-70747-3.

Reviewed by Yael Schacher (History of American Civilization, Harvard University)
Published on H-Human-Rights (January, 2010)
Commissioned by Rebecca K. Root (Ramapo College of New Jersey)

Asylum and Its Discontents in Liberal Democracies

Matthew Price positions his book in opposition to what he calls the humanitarian or palliative view of asylum, which has been advocated most prominently by James Hathaway.[1] Hathaway's view has gained ascendency in court cases involving battered women and ethnic conflict, and emphasizes eligibility for those in need of protection from violation of human rights. This broadening of eligibility and “diminish[ed] ideological view” of asylum has, according to Price, contributed to public opposition to asylees (p. 10). He argues that keeping asylum viable, in light of restrictions against applicants in Europe, Australia, and the United States since the early 1990s, requires limiting its scope and using it to promote political values. He believes it is best to keep the persecution standard focused on individuals specifically targeted with violence and discrimination by their governments or those whose governments are unwilling to protect them from violence perpetuated by non-state agents. “Whether protection is adequate,” Price writes, “depends not on the victim’s viewpoint, but instead on the state’s efforts” (p. 155). For Price, asylum is a sanction against outlaw states, so he claims that those states that try but fail to protect their citizens should not be held accountable. In general, Price takes a state-centered view of asylum, arguing that persecution should be gauged in relation to sovereignty; persecution is conduct so at odds with the state’s role as the fiduciary of its citizens “that a presumption of legitimacy cannot be justified and external interference is warranted” (p. 106).

A better subtitle for Price’s book would be “Theory, Purpose, and Limits” because Price’s discussion of history is partial. In his first chapter, after an overview of conceptions of asylum in the writings of seventeenth- and eighteenth-century natural law jurists, Price discusses the nineteenth-century development of a political exception to extradition in England and the United States. In doing so, Price ignores the much less liberal rendition system Britain used to control political dissent in its colonies and the fact that, by the early twentieth century, it required humanitarian petitioning, creative lawyering, and ethnic lobbying to prevent the extradition of political offenders from the United States to Russia and Mexico, America’s autocratic allies. What was political was typically defined narrowly by the state and contested by others. Price ignores this contestation and the distinction between extradition and asylum. In extradition, one state makes a request from another; in asylum, the asylee is a party and is asking a state for protection. 

There are other places in the book that lack full historical analysis and where Price draws flawed distinctions or fails to draw appropriate ones. At one point Price contrasts civil wars that are “battles for power between a government and a rebel group” and civil wars “fought along ethnic, racial, national or religious lines,” ignoring the historical overlap between these types; the history of Sudan since the 1980s provides a good example (p. 132). Most under-examined in this book are the roots of contemporary restrictionist policies, which Price admits he “tak[es] as a premise” for his argument (p. 249). Price blames this sentiment on the public’s perception that the humanitarian approach to asylum opens the floodgates and thus “contains the seeds of its own destruction” (p. 247). Though Price’s account serves as a cautionary tale for refugee advocates, it downplays the complicated institutional, political, and administrative development of restrictionism.[2]  

Price’s neglect of this history also reflects his general lack of acknowledgement of liberalism’s exclusions and contradictions. According to Price, the closing of borders in the twentieth century did not change asylum’s purpose and “tradition”; the restrictionism of the 1920s and 1930s only temporarily “displaced” it (p. 58). Price confuses ideals with realities when he claims that liberal democracies “cannot tolerate” the existence of a laboring caste of migrant workers (p. 174). The one time Price addresses contemporary racist incidents in Britain and Germany, he blames these “tensions” on an increase in asylum seekers (pp. 206-207).

Price’s state-centered view is also apparent in his discussion of asylum as an expressive sanction against outlaw states. The disavowals of scholars, lawyers, judges and the American Board of Immigration Appeals notwithstanding, Price claims that  “granting asylum ... entails the expression of condemnation and that condemnation aims at reforming the abusive state” (p. 71). This reflects Price’s foreig- policy orientation, one that turns the courts and refugees into tools of the State Department, albeit in a way that Price claims avoids the pitfalls of a Cold War jurisprudence that overprotected refugees from Communist countries and underprotected those from U.S. client states. Rather than having the courts rely on State Department reports and opinions in deciding asylum claims, Price suggests that “asylum decisions can be used as a source of information for government officials in determining whether the human rights prerequisites for aid have been met” (p. 78). Price argues that the United States should use its influence over multilateral development banks to punish governments for violating human rights, but insists the United States has no responsibility to provide asylum to the victims of IMF- or World Bank-imposed destabilizing structural adjustment programs (pp. 78, 3). He does not believe that asylum can be an effective deterrent to systemic human rights abuse, but nonetheless insists on the primary significance of asylum’s foreign-policy, rather than its protective, role. His reasoning seems to rely less on norms than on cost and numbers: “when numbers are small, states should help the persecuted on a retail basis, one-by-one, through asylum. But when numbers increase ... receiving states may be justified in assisting the persecuted wholesale by toppling the persecutory regime” (p. 78). Price claims asylum is a “very inefficient” medium for helping most refugees and should be treated as a “scarce resource” (p. 12). “In the end,” Price writes, “a concern for practical consequences points against granting asylum to victims of ‘structural economic’ harm” (p. 134). Thus Price does not provide a strong counterargument to recent legal and normative arguments for expanding asylum to consider economic degradation.[3] Price does not think that asylum courts should scrutinize the way “burdened” states use their limited resources, although he concedes there may be exceptions, as in cases of famine where food is used as a political tool (p. 73).

Price’s third and fourth chapters will be most useful for those interested in debates over the reach of asylum jurisprudence. Price claims that some international human rights law, such as the right to be free from torture, should be considered in asylum adjudication (since torture is always beyond the scope of legitimate government action). But fundamentally Price argues that “legitimacy should remain the touchstone for defining ‘persecution,’ not human rights” and that there are no universal standards for assessing legitimacy, as “reasonable people may well have very different intuitions” as to the rights of states to regulate social mores (e.g., Iranian modesty laws) and determine the public good (e.g., Chinese sterilization policy) (pp. 114, 120). Price also argues that focusing on state accountability actually benefits battered women’s asylum claims because it shifts the court’s focus from assessing the intention of a private actor to inflict harm to the state’s systematic gender discrimination in law enforcement. 

Price’s fifth and sixth chapters will be most useful for readers interested in debates over contemporary refugee policies. Price posits that restrictionism is entrenched and that emphasis should be placed on reducing the time it takes to process and adjudicate asylum claims without sacrificing “basic fairness” and on integrating already admitted persecuted people (p. 230). Within this framework, he must contend with an increasingly prominent concern: refugees from failed states. Because Price believes asylum is premised on the existence of a state authority “that can be held accountable for an unwillingness to protect,” he argues that those fleeing failed states or violent anarchy should be granted temporary protection rather than asylum (p. 149). Still, where chaos and civil war persist in the home country, as in the case of Somalia, adjustment to permanent status in the country of refuge should be possible, Price argues, not so much out of regard for effective statelessness as much as “in recognition of the social connections they have formed with their host society” (p. 177).

Notes

[1]. See, for example, James Hathaway, "Reconceiving Refugee Law As Human Rights Protection," Journal of Refugee Studies 4, no. 2 (1991):113-131; and James Hathaway, Law of Refugee Status (Toronto: Butterworths, 1991).

[2]. See, for example, Antje Ellermann, States Against Migrants (New York: Cambridge University Press, 2009); and Vicki Squire, The Exclusionary Politics of Asylum (New York: Palgrave Macmillan, 2009).

[3]. Michelle Foster, International Refugee Law and Socio-Economic Rights(Cambridge: Cambridge University Press, 2007).

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Citation: Yael Schacher. Review of Price, Matthew E., Rethinking Asylum: History, Purpose, and Limits. H-Human-Rights, H-Net Reviews. January, 2010.
URL: http://www.h-net.org/reviews/showrev.php?id=25497

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